State Ex Rel. Biscuit Co. v. Becker , 316 Mo. 865 ( 1927 )

The relator concedes that conflict with any controlling opinion of this court does not appear on the face of the respondents' opinion, but in order to discover a conflict the relator has recourse to the petition filed in the trial court.

This brings up the question as to what this court will consider in determining whether an opinion of the court of appeals is in conflict with the ruling of this court. Shall we go beyond the face of the opinion of the court of appeals, and if so, how far, in considering the record before that court?

When the matter of superintending control was first brought to the attention of this court in a claim of conflict between the rulings of a court of appeals and this court, the office of the ancient writ of certiorari was considered at length. [State ex rel. Curtis v. Broaddus, 238 Mo. 189.]

Of course under Section 3, Article 6, of the Constitution, and under Section 8, Article 6, of the Amendments of the Constitution, we have superintending control over the courts of appeals. Under the latter section that control is exercised by "mandamus, prohibition and certiorari." The office ofcertiorari is to question the jurisdiction of the court to which it is directed. We may grant the writ where the court of appeals has transcended its jurisdiction in entertaining a case of which the Constitution invests this court with jurisdiction. The case might involve a pecuniary amount, or present issues which the court of appeals had no jurisdiction to consider. In such case no doubt we would necessarily consider the entire record before the court of appeals in determining whether it had jurisdiction. But Section 6 of the Amendment of 1884 to Article 6 defines the jurisdiction of the court of appeals where aconflict with this court is claimed. That section provided that "the last previous rulings of the Supreme Court on any question of law or equity shall in all cases be controlling authority in said court of appeals." The court of appeals does not go contrary to the previous rulings of this court unless it states a proposition of law contrary to what this court has held. Necessarily the conflict in such case must appear upon the face of the opinion.

The opinion of Judge ATWOOD indicates that he is in sympathy with that construction of the Constitution, but is driven to a contrary ruling by repeated holdings of this court.

When this particular question first came up for consideration, State ex rel. v. Reynolds, 257 Mo. l.c. 36, it was said: "Where that class of cases is brought before us by certiorari we will consider only the pleadings, evidence and facts as recited by the court of appeals whose judgment is sought to be quashed." In the later case of State ex rel. Bush v. Sturgis, 281 Mo. l.c. 601, we held: "The limit of our review is the opinion of the court of appeals. If it does not disclose a conflict with the former rulings of this court then our power of superintendence is at an end." Other cases have been ruled upon that theory.

Nevertheless a greater number of opinions have held that we may go beyond the face of the opinion of the court of appeals and consider certain parts of the record in that court. Such rulings are not consistent with each other, but the most important are such as appear in the case of State ex rel. v. Ellison, 281 Mo. l.c. 674, where it was said: "Reference in the opinion to a written document in the case, makes it as much a part of the opinion, as if fully written out therein." In that construction a bare majority of the court only concurred. WALKER and WILLIAMS, JJ., dissented. Again the theory was expressed in State ex rel. v. Allen, 282 S.W. l.c. 48, where it was said: "For the facts we look to the opinion of the court of appeals and to any pleading, instruction or written instrument referred to therein." Some expressions do not go that far, but taking the last two quotations as definitions of the field to be explored we are left in a state of uncertainty as to just what they mean. What, for instance, is meant by a pleading or instrument referred to? Is it referred to if the character of the instruments is just mentioned in the opinion? If an excerpt from the document is quoted in the opinion does that bring under our consideration the entire document? It is stated in case of National Newspaper Association v. Ellison, 176 S.W. 11, that a mere reference to a document is not sufficient, but it must be made the subject-matter of the ruling to bring it within the consideration of this court. That does not help us any. A candid consideration of the subject will show that if we go beyond the face of the opinion we can not consistently stop short of the entire record before the court of appeals. It was said in the case of State ex rel. v. Ellison, 191 S.W. 49, by Judge JAMES T. BLAIR, who wrote the opinion, that the purpose of the superintending control in such case was to preserve harmony of decision and not mere harmony of opinion. That a harmony of opinion was only a surface harmony and we must have harmony of decision. By that he undoubtedly meant that we must see that the case before the court of appeals is decided just as we would have decided it if it were here. We could not have perfect harmony of decision unless we treat the writ of certiorari as a writ of error, a writ of review. It is absurd to say that we must have harmony of decision and content ourselves with anything short of complete harmony which can only be secured by a complete review of the entire record before the court of appeals. In the arguments before this court it has been insisted that we have as much reason to inquire into the oral evidence in the case as to inquire into documentary evidence and we have as much reason to inquire into the evidence as we have to inquire into the pleadings. The difficulty in stopping short of the evidence, oral and otherwise, is suggested in the case of State ex rel. v. Reynolds, 286 Mo. 217, in the opinion by Judge J.T. BLAIR, where he said: "The rule in the case cited has never been applied to authorize the consideration in this court, oncertiorari, or testimony of witnesses upon which a court of appeals founds its statement of facts any further than such testimony appears in the opinion. Whether such testimony would be here for consideration if a reference to it as the basis of a ruling was made, without any statement of the facts it tended to prove, is not presented in this case." If a ruling of the court of appeals is based upon facts, which the record shows as the testimony of the witnesses, which is as easily accessible as a document in the case, then why should we not have recourse to the oral evidence thus embodied in the record in order to determine the propriety of the court of appeals' ruling? What difference is there for this purpose between documentary evidence and oral evidence? Between a deed and an oral contract?

The opinion of the court of appeals might be entirely incorrect when considered with reference to a document in the case. It might be entirely correct on further consideration of the oral evidence in the case. An instruction referred to in the opinion of the court of appeals in its entirety might show the opinion wrong, yet if we would go further and consider all the other instructions and all the evidence we would find the opinion to be correct. An opinion of the court of appeals might be in entire harmony with the rulings of this court on its face where it refers to a written document, instruction or pleading, but an examination of that document, instruction or pleading might show that the opinion is in conflict with what we have decided. But if we should go further and consider all the evidence in the case and all the instructions in the case we might find the opinion of the court of appeals in perfect harmony with our rulings. There is no stopping place if we go beyond the face of the opinion, short of the entire record. If we go to one document to discover that the court of appeals is wrong, we do that court an injustice if we do not go to the entire record to see whether it is right. An erroneous instruction may be cured by another instruction. The defective pleading may be treated by the parties in the course of the trial as formal and complete in such way as to justify a holding by the trial court that the appellant had no right to complain, yet if we go beyond the face of the opinion and go to the pleadings we might conclude the court of appeals was wrong, whereas in fact it was entirely right.

So there is no middle ground between the consideration of the entire record or the consideration only of the opinion. The conflict which we seek to cure by such a proceeding is conflict in the statement of the law. We want those who read the Reports of this court and the courts of appeals to find that they are in entire harmony. There is no conflict in the rulings unless that conflict appears on the face of the opinion. For these reasons I dissent from the conclusion reached by Judge ATWOOD in the leading opinion. Blair, C.J., and Walker, J., concur in these views.